The decision to allow a nurse who punched a teenager with severe learning disabilities in the face, breaking his jaw, to keep practising has been referred to the High Court.

Maxwell Nyamukapa, a specialist nurse who worked at Winterbourne View residential hospital near Bradley Stoke, broke Ben Garrod's jaw and knocked out two of his teeth when he hit him in the face.

Ben is autistic and bipolar, with a severe learning disability and was 18 years old when Maxwell Nyamukapa hit him.

But regulator the Nursing and Midwifery Council said it couldn’t prove Mr Nyamukapa had used "excessive force" and that he was allowed to keep working as a nurse. The verdict of an NMC fitness to practise panel, delivered on October 11, caused outrage with Ben’s family and autism groups.

Now the Professional Standards Authority has said the NMC's decision is "is insufficient to protect the public" and has referred the case to the High Court.

Winterbourne View residential hospital for adults with learning difficulties, on the outskirts of Bradley Stoke, which closed after an undercover BBC Panorama investigation uncovered widespread abuse of patients. (Image: SWNS)

The incident happened in 2009, while Ben was living at the privately-run hospital, which two years later became the focus of a BBC One Panorama investigation exposing extreme abuse taking place there.

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Ben, previously known as Ben Pullar, is autistic, bipolar and has a severe learning disability. He got into a fight with Mr Nyamukapa in August that year, when he was 18 years old. Mr Nyamukapa said he punched Ben when the patient lunged at him and bit his fingers.

Care notes from the hospital obtained by the BBC documentary series Inside Out West, published in 2012, stated that Ben had "had an accident with his teeth".

The alarm was raised by two doctors at the Bristol Dental Hospital who treated Ben's injuries. They did not believe they were consistent with the story carers were telling them. Police logged the alleged assault at the time but said the nurse had acted instinctively and in self-defence.

The BBC later reported that Mr Nyamukapa had been suspended in connection with the incident, then reinstated.

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After the 2011 Panorama documentary was aired, an independent review into earlier incidents of alleged abuse involving different staff members took place but in all but one case, no-one was charged.

Ben's family called for the police to launch a fresh inquiry into what he had experienced and the new management team at Castlebeck, the company which had run Winterbourne View, then referred Mr Nyamukapa to the Nursing and Midwifery Council for investigation, after being given details of the incident by the BBC.

Ben was moved to a new facility after a year at Winterbourne View because his family became increasingly worried about his care at the hospital, having found carpet burns on his body. They also say they were made aware of an alleged second assault, where Ben had been tripped up by staff who claimed he tried to run off while being showered.

Mr Nyamukapa continued working at the facility and was employed there during the Panorama expose, screened in 2011, but was not one of the members of staff prosecuted after the documentary aired.

On October 11 this year a fitness to practise hearing held by the Nursing and Midwifery Council found Mr Nyamukapa was able to continue practising, as it could not prove he had used excessive force.

That decision was passed up to overall health watchdog the Professional Standards Authority, which has the power to overturn findings by the Nursing and Midwifery Council.

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Yesterday the Professional Standards Agency said in a statement: “The Nursing and Midwifery Council’s final fitness to practise committee decided there was ‘no misconduct’. The authority considers this is insufficient to protect the public. It has now exercised its power of appeal to the High Court.”

The agency's director of scrutiny and quality, Mark Stobbs, said: “Our power to review and appeal cases is a vital part of public protection. By scrutinising decisions, we make sure that professionals who are not fit to practise do not slip through the net. The judge can reject our appeal, quash the decision, substitute a new decision or send the case back to the regulator’s final fitness to practise committee to reconsider.”

Whilst the case is ongoing, the authority is unable to make any further comment.